Citation Nr: 0023089
Decision Date: 08/30/00 Archive Date: 09/05/00
DOCKET NO. 99-04 660 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Odlum, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1947 to
December 1949.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a May 1998 rating decision from the Waco,
Texas Department of Veterans Affairs (VA) Regional Office
(RO).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. A preponderance of the evidence demonstrates that the
veteran did not have full-body mustard gas exposure during
active service.
3. The appellant has not presented or identified competent
medical evidence relating the cause of the veteran's death to
mustard gas exposure, in-service tobacco use, or any other
incident or event of active service.
CONCLUSION OF LAW
The cause of the veteran's death is not related to an injury
or disease incurred in or aggravated by active service,
including tobacco use or dependence, and may not be presumed
to have been incurred in service due to mustard gas exposure.
38 U.S.C.A. §§ 1110, 1112(a)(1), 1310, 5107 (West 1991 &
Supp. 1999); 38 C.F.R. §§ 3.303, 3.309(a), 3.310, 3.312,
3.316 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The National Personnel Records Center (NPRC) has indicated
that the veteran's service medical records were destroyed by
fire.
Daily sick reports document treatment of the veteran but they
do not specify what he was treated for.
The DD Form 214 indicates that the veteran served in the
United States Air Force.
In June 1994 the veteran was admitted to the VA Medical
Center (VAMC) in Dallas with a history of hypertension,
peripheral vascular disease, and pulmonary embolisms
secondary to recurrent deep venous thrombosis. Multiple
tests were performed revealing a left iliac pseudoaneurysm.
In June 1994 the veteran submitted a claim alleging service
connection for bronchitis, emphysema, asthma, and chronic
obstructive pulmonary disease (COPD) as a result of mustard
gas and Lewsite exposure while in the service. He contended
that he was exposed to such substances while in basic
training in 1947.
In January 1995 the veteran submitted a statement pertaining
to his alleged mustard gas and Lewsite exposure. He again
contended that he had experienced such exposure during basic
training. He reported such exposure while in the gas chamber
without equipment, recalling the smell of new mown hay. He
also reported exposure while on bivouac. He stated that he
was exposed at the Air Force base in San Antonio, Texas whose
present name is Lackland Air Force Base.
In March 1995 the RO reported that the veteran's name had not
been found on the mustard gas exposure list at the "C & P
Service."
In March 1995 the RO contacted the U.S. Army Chemical and
Biological Defense Agency and requested that it conduct a
search for chemical testing records (mustard gas) for the
veteran.
In April 1995 the U.S. Army Chemical and Biological Defense
Agency responded that they were unable to provide
verification that the veteran was exposed to a mustard gas
agent, noting that personnel or medical files of former
service personnel were not archived.
However, the agency did note that all soldiers in the 1940s
were to receive 7 hours of chemical warfare training during
basic training. It was noted that the gas chamber was one
portion of such training. The agency further noted that the
gas chamber used tear gas or chlorine. The agency found that
simulants also may have been used to help teach trainees
about the odors of the war gases or when the supply of tear
gas was limited. Citing to an article in the Chemical
Warfare Newsletter from May 1943, the agency noted that oil
of garlic, geranium, and anise were used. Oil of garlic was
used to simulate mustard gas and the oil of anise was used to
simulate chlorpicrin. An alcoholic solution of coumarin was
used to simulate phosgene. Oil of geranium was a simulant
for Lewsite.
It was concluded that such simulants could account for the
veteran recalling the smell of "new mown hay" which is the
odor of phosgene.
The agency also noted the veteran's assertion of exposure
while on bivouacs, and reported that a surprise attack of
tear gas, smoke, a mustard gas simulant, or plain water was a
common training exercise on marches or bivouacs.
In March 1995 the RO sent a request to the NPRC for
verification of the veteran's alleged exposure to mustard
gas. In June 1995 the NPRC responded that there were no
"SGOs" or medical records on file for the veteran. It
further found that the World War II exposure to hazardous
chemicals list did not include the veteran's name.
In April 1995 the RO received private medical records from
Dr. B.C.D. These records show treatment between 1981 and
1986 of upper respiratory and other symptoms. A note from
April 1984 indicated that he had stopped smoking.
In April 1995 the RO received private treatment records from
Dr. A.T.H. who reported that he had treated the veteran since
about 1988 for chronic bronchitis, high blood pressure,
depression, and anxiety. Also noted was pulmonary
hypertension, multiple episodes of laryngitis, and a history
of a pulmonary embolus. Medical records show treatment of
these and other impairments dating back to 1990. Treatment
notes show that the veteran was prescribed Nicorette gum in
January 1990, August 1992, January 1993, October 1993, and
March 1994. A progress note from March 1994 noted that he
had not smoked in 16 days.
In May 1995 the RO received medical records from Dr. G.B.K.
These records document hospital treatment in July 1982,
September 1982, and January 1986. In July 1982 the veteran
was admitted after having a syncopal episode.
A history of a marked cough for a number of years was noted,
as was a three to four pack per day history of cigarette
smoking. It was also indicated that he drank at least a
fifth of liquor per week. The pertinent impression was
syncope of uncertain etiology and chronic smoker's
bronchitis.
The veteran was readmitted in September 1982 for evaluation
of periodic episodes of loss of consciousness. It was again
noted that he smoked continuously, was a chain smoker, and
was smoking even more heavily of late.
In January 1986 the veteran was admitted for a syncopal spell
and seizure. He was still smoking two to three packs of
cigarettes per day. Heavy alcohol intake was again noted.
The final diagnosis was postural hypotension, secondary to
peripheral neuropathy due to alcoholic neuropathy and a
seizure due to cough syncope secondary to smoker's
bronchitis.
In February 1996 a local hearing was conducted. The veteran
again testified to exposure during basic training in 1947.
Transcript, p. 3. He testified to being told that he was
being exposed to phosgene, Lewsite, mustard gas, and blister
gas. Id. He reported such exposure occurred on
approximately twenty occasions. Tr., p. 4.
The veteran testified that he started experiencing problems
with breathing shortly thereafter while stationed in Japan.
Tr., p. 4. He indicated that the location of his basic
training was in San Antonio, Texas at what is currently
called Lackland Air Force Base. He stated that he took an
oath of secrecy before undergoing the tests. Tr., p. 5. He
stated that he did not remember whether volunteers were
requested for such testing. Tr., p. 3.
The veteran testified to receiving treatment for his lungs
within six months after his discharge from service from Dr.
G.B.K. Tr., p. 5. He testified that Dr. G.B.K. had been
unable to find his older records but that he did retrieve
records from Methodist Hospital. Tr., p. 6.
In March 1996 the veteran submitted a January 1993 article
from the Fort Worth Star pertaining to secret mustard gas
experiments performed in the 1940s. The article reported
that the government conducted secret gas-chamber tests on
thousands of soldiers during World War II that exposed them
to mustard gas and that many of these veterans subsequently
developed health problems.
It was also indicated that veterans had volunteered for such
testing and received leave in exchange for their
participation in such experiments. However, one veteran was
noted as reporting that he was not told that the testing
would involve poisonous gases.
The article specifically noted where the mustard gas tests
were performed. It noted that gas chamber tests of this
nature were performed in Bainbridge, Maryland; Camp Lejeune,
North Carolina; Camp Seburt, Alabama; Great Lakes Naval
Training Center, Illinois; and the Naval Research Lab in
Washington, D.C. Field tests were conducted in Bushnell,
Florida; Dugway Proving Ground, Utah; and on San Jose Island
in the Panama Canal Zone. Both gas chamber and field tests
were performed at Edgewood Arsenal in Maryland. The article
did not indicate that any mustard gas experiments were
performed in the state of Texas.
In May 1997 the Board denied the veteran's claims for service
connection.
In June 1997 the veteran submitted a claim for service
connection of his lung condition as secondary to in-service
tobacco use.
In September 1997 the veteran was admitted to a VA hospital
in Fort Worth, Texas for altered mental status and worsening
respiratory status. It was noted that he had been diagnosed
with small cell carcinoma of the lung in June 1997. It was
also noted that he had been diagnosed with transitional cell
carcinoma of the bladder in September 1991, peripheral
vascular disease, and multiple pulmonary embolisms in 1961.
During his hospitalization, the veteran was diagnosed with
pneumonia that likely resulted in sepsis. The veteran passed
away shortly thereafter. It was concluded that the cause of
death was sepsis secondary to pneumonia.
The veteran's certificate of death reveals that the immediate
cause of death was sepsis due to pneumonia. The underlying
cause of death was listed as small-cell lung carcinoma. It
was concluded that tobacco use had contributed to his death.
In October 1997 the appellant submitted a claim for
dependency and indemnity compensation (DIC). Submitted with
this application was a tobacco product use history
questionnaire. It was reported that that the veteran had
small cell carcinoma and that he had been treated for lung
problems over the past 30 years. It was reported it was
unknown as to whether the veteran had started smoking prior
to entering the service. It was indicated that he had used
cigarettes issued in rations while he was in the service.
It was reported as being unknown as to when the veteran's in-
service tobacco use started, or if it actually started in
service. The frequency of his in-service tobacco use was
reported as unknown. It was reported that he smoked two to
three packs of cigarettes per day after his discharge from
service. It was reported that he quit for eight months about
five or six years prior.
In May 1998 the RO denied service connection for the cause of
the veteran's death. The RO also denied entitlement to
accrued benefits. The appellant appealed the denial of
service connection for the cause of the veteran's death.
In May 1998 the appellant contended that the veteran's
exposure to mustard and other gases contributed to his lung
problems and that his tobacco use, which began in the
service, contributed to his death.
In June 1999 a local hearing was conducted. The appellant
testified that, to the best of her knowledge, the veteran did
not start using cigarettes before entering the service,
acknowledging that she did not know him when he went into the
service. Transcript, p. 2. She opined that his tobacco or
nicotine addiction began while he was in the service. Tr.,
p. 2. She testified that he smoked about three packs of
cigarettes per day after getting out of the service. The
appellant testified that the veteran quit smoking once but
that he started again, opining that he was definitely
addicted to cigarettes. Tr., p. 3.
The appellant testified to being told by the veteran of his
exposure to gases including mustard gas while in the
military. Tr., pp. 3-4. She testified that he had been
having lung problems ever since they married. Tr., p. 4.
She testified that they had been married for 33 years since
around 1964. Tr., p. 4.
General Criteria
A claim for service connection for the cause of death is
treated as a new claim, regardless of the status of
adjudication of service-connected-disability claims brought
by the veteran before his death; therefore, a well-grounded
claim must be presented. See Lathan v. Brown, 7 Vet.
App. 359 (1995); 38 C.F.R. § 20.1106 (1999).
The United States Court of Appeals for Veterans Claims
(Court) has held that a well grounded claim is "a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of § [5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
The Court has articulated the requirements for a well-
grounded claim for service connection as follows: (1) medical
evidence of a current disability; (2) medical or, in certain
circumstances, lay evidence of inservice incurrence or
aggravation of a disease or injury; and, (3) medical evidence
of a nexus between the claimed inservice injury or disease
and a current disability. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table).
Evidence submitted in support of the claim must be accepted
as true for the purpose of determining whether the claim is
well grounded, except when the evidentiary assertion (other
than in a government record) is inherently incredible or when
the fact asserted is beyond the competence of the person
making the assertion. Hensley v. West, No. 99-7029 (Fed.
Cir. May 12, 2000).
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. § 1131 (West 1991);
38 C.F.R. § 3.303 (1999).
Continuous service for 90 days or more during a period of war
or peacetime service after December 31, 1946, and post-
service development of a presumptive disease to a degree of
10 percent within one year from the date of termination of
such service, establishes a presumption that the disease was
incurred in service. 38 C.F.R. §§ 3.307, 3.309 (1999).
If not shown in service, service connection may be granted
for malignant tumors if shown disabling to a compensable
degree during the first post service year. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1999);
38 C.F.R. §§ 3.307, 3.309 (1999).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1999).
In cases of service connection for the cause of death of the
veteran, the first requirement of a current disability will
always have been met, the current disability being the
condition that caused the veteran to die; however, the last
two requirements for a well-grounded claim must be supported
by the record. Carbino v. Gober, 10 Vet. App. 507, 509
(1997).
In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by active service was the principal
or contributory cause of death. 38 U.S.C.A. § 1310 (West
1991); 38 C.F.R. § 3.312(a) (1999).
In order to constitute the principal cause of death the
service-connected disability must be one of the immediate or
underlying causes of death, or be etiologically related to
the cause of death. 38 C.F.R. § 3.312(b) (1999).
Contributory cause of death is inherently one not related to
the principal cause. In order to constitute the contributory
cause of death it must be shown that the service-connected
disability contributed substantially or materially; that it
combined to cause death; that it aided or lent assistance to
the production of death. It is not sufficient to show that
it casually shared in producing death, but rather it must be
shown that there was a causal connection. 38 C.F.R.
3.312(c).
If the service-connected disability affected a vital organ,
careful consideration must be given to whether the
debilitating effects of the service-connected disability
rendered the veteran less capable of resisting the effects of
other diseases. There are primary causes of death which by
their very nature are so overwhelming that eventual death can
be anticipated irrespective of coexisting conditions, but,
even in such cases, there is for consideration whether there
may be a reasonable basis for holding that a service-
connected condition was of such severity as to have a
material influence in accelerating death. In this situation,
however, it would not generally be reasonable to hold that a
service-connected condition accelerated death unless such
condition affected a vital organ and was of itself of a
progressive or debilitating nature. 38 C.F.R. § 3.312(c)(3),
(4) (1999); Lathan v. Brown, 7 Vet. App. 359 (1995).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the appellant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1999).
Criteria Pertaining to Mustard Gas and Lewsite Exposure Cases
Certain specific laws and provisions apply to a veteran
claiming entitlement to service connection for disabilities
due to exposure to mustard gas or Lewsite.
38 C.F.R. § 3.316 (1999) provides that full-body exposure to
specified vesicant agents during active military service
under the circumstances described below together with the
subsequent development of any of the indicated conditions is
sufficient to establish service connection for that
condition:
(1) Full-body exposure to nitrogen or sulfur mustard during
active military service together with the subsequent
development of chronic conjunctivitis, keratitis, corneal
opacities, scar formation, or the following cancers:
nasopharyngeal; laryngeal; lung (except mesothelioma); or
squamous cell carcinoma of the skin.
(2) Full-body exposure to nitrogen or sulfur mustard or
Lewsite during active military service together with the
subsequent development of a chronic form of laryngitis,
bronchitis, emphysema, asthma or chronic obstructive
pulmonary disease.
(3) Full-body exposure to nitrogen mustard during active
military service together with the subsequent development of
acute nonlymphocytic leukemia.
A well-grounded claim for service connection of a disability
resulting from exposure to mustard gas or Lewsite requires
only medical evidence of a current, pertinent disability
included under § 3.316 and evidence of inservice exposure to
mustard gas, nitrogen, or Lewsite. See Pearlman v. West,
11 Vet. App. 443 (1998).
For purposes of submitting a well-grounded claim relating to
exposure to toxic gases under section 3.316, lay testimony of
such exposure is presumed to be true. See Pearlman 11 Vet.
App. at 447; see also Hensley v. West, No. 99-7029 (Fed. Cir.
May 12, 2000).
However, the presumption of credibility does not extend to
the point beyond which it is determined that a claim is well
grounded. King v. Brown, 5 Vet. App. 19, 21 (1993); Chipego
v. Brown, 4 Vet. App. 102, 104-105 (1993).
Criteria Pertaining to Tobacco
In terms of tobacco use, for claims filed prior to June 9,
1998, service connection of a tobacco-related death or
disability can be established in two basic ways: direct
service connection or secondary service connection. See
VAOPGCPREC 19-97.
Direct service connection may be established for disability
or death if the evidence establishes that the injury or
disease resulted from tobacco use in the line of duty during
active military service. See VAOPGCPREC 2-93.
The threshold issue in such cases is whether the claim is
well-grounded. On July 24, 1997, the Acting Under Secretary
of VA for Benefits issued USB Letter 20-97-14 which
discussed, in reference to an earlier all-station letter
dated in January 1997, the criteria required for a claim to
meet the well-groundedness threshold.
It specifically stated, in pertinent part, that for claims
alleging a direct link between tobacco use in service and a
current disability, the appellant must provide medical
evidence of a current disability, medical or lay evidence of
tobacco use in service, and medical evidence of a
relationship between the current disability and tobacco use
during active service in order to establish a well-grounded
claim. See Letter from the Acting VA Undersecretary for
Benefits (USB Letter 20-97-14).
Secondary service connection may be established pursuant to
38 C.F.R. § 3.310(a) (1999) by (1) providing competent
evidence of nicotine dependence during service; and (2)
establishing that such nicotine dependence was the proximate
cause of disability or death resulting from the use of
tobacco products by the veteran. The question of whether a
veteran is dependent on nicotine dependence is a medical
issue. See VAOPGCPREC 19-97. The Board is bound by the
precedent opinions of the VA General Counsel. 38 U.S.C.A.
§ 7104(c) (West 1991).
It should be noted that for claims filed after June 9, 1998,
pursuant to 38 U.S.C.A. § 1103 (West 1991 & Supp. 1999),
service connection may be granted only if a tobacco-related
disability was manifest during service or within any
applicable presumption period.
Analysis
Initially, the Board finds that the appellant's claim for
service connection for the cause of the veteran's death is
well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The
underlying cause of death was small cell lung carcinoma.
Carcinomas of the lung are among those impairments included
under the presumptive provisions pertaining to section 3.316.
The appellant has contended that the veteran was exposed to
mustard gas in the service. Therefore, the claim is well-
grounded. See Pearlman, supra.
The Board notes that neither carcinomas of the lung nor
pneumonia are among the diseases listed in association with
exposure to Lewsite. 38 C.F.R. § 3.316(a)(2). Therefore,
the issue of Lewsite exposure is not relevant in this case.
The Board is satisfied that all relevant facts have been
properly developed, and that no further assistance is
required in order to satisfy the duty to assist mandated by
38 U.S.C.A. § 5107(a) (West 1991); see Schroeder v. West, No.
99-7103 (Fed. Cir. May 18, 2000) (holding that once a well-
grounded claim for a current disability has been established,
the duty to assist attaches to the investigation of all
possible in-service causes of that current disability).
In this regard, the Board notes that most of the veteran's
service medical records were destroyed by fire. Where the
veteran's service medical records are lost or destroyed, the
Board's obligation to explain its findings and conclusions is
heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367
(1991).
In this case, the RO satisfied the duty to assist by making
multiple attempts to obtain evidence of in-service mustard
gas exposure from alternative sources. It has requested
verification from the Compensation and Pension Service, the
NPRC, and the U.S. Army Chemical and Biological Defense
Agency See M21-1, Part III, para. 5.18; Layno v. Brown,
6 Vet. App. 465, 469 (1994).
With respect to the claim that the veteran's in-service
tobacco use contributed to the cause of the veteran's death,
the appellant was apparently provided with a Tobacco
Questionnaire which she completed; however, she indicated
that she did not know the veteran or his smoking history
before he entered the service. Tr., p. 5.
As was stated above, the majority of the veteran's service
medical records were destroyed by fire. In this case, the
appellant has not indicated the existence of any pertinent
evidence which the RO has not obtained. In addition the RO
specifically advised the appellant to find someone who knew
the veteran prior to entering the service to complete a
tobacco questionnaire that would therefore provide a more
complete history of his smoking. Tr., p. 5; see Layno,
supra. There is no indication that the appellant ever
provided such a questionnaire or other evidence in response.
With regard to the retrieval of relevant records, the record
should show at least the possibility that the records exist.
The duty to assist is not a license for a "fishing
expedition" to ascertain whether there might be unspecified
information which could possibly support a claim. Gobber v.
Derwinski, 2 Vet. App. 470, 472 (1992); see e.g., Counts v.
Brown, 6 Vet. App. 473, 476 (1994). In this case, the
appellant has not indicated the existence of any evidence
which could support her claim that in-service tobacco use
contributed to the cause of the veteran's death.
Nor has the appellant indicated the existence of any other
evidence not already obtained which could support her claim
for service connection of the cause of the veteran's death in
general. The veteran referred to treatment of his lungs by
Dr. G.B.K. within six months after his discharge from
service; however, he also testified that Dr. G.B.K. had been
unable to find his older records but that he did retrieve
records from Methodist Hospital. Tr., p. 6. Therefore, the
Board concludes that the duty to assist has been satisfied in
this instance. See Gobber, supra.
As was stated above, the truthfulness of evidence is presumed
in determining whether a claim is well grounded. Meyer v.
Brown, 9 Vet. App. 425, 429 (1996). However, the presumption
of credibility does not extend to the point beyond which it
is determined that a claim is well grounded. King v. Brown,
5 Vet. App. 19, 21 (1993); Chipego v. Brown, 4 Vet. App. 102,
104-105 (1993).
In a claim that has been found to be well-grounded, the Board
is required to consider and discuss all evidence on both
sides of the issue, and to reconcile any conflicts among such
evidence, or, alternatively, provide an explanation of the
reasons for rejecting evidence favorable to the appellant or
determining that such evidence is of little relative weight
or probative value. Quiamco v. Brown, 6 Vet. App. 304, 308
(1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
After a careful review of the record, the Board concludes
that a preponderance of the medical evidence demonstrates
that the cause of the veteran's death did not result from a
disease or injury incurred in service, including exposure to
mustard gas and in-service tobacco use.
With respect to mustard gas exposure, the evidence in favor
of the claim consists of statements by the appellant and the
veteran alleging his exposure to mustard gas while in the
service. In addition, small cell lung carcinoma is included
as one of the diseases associated with mustard gas exposure
in section 3.316. 38 C.F.R. § 3.316(a)(1).
However, the appellant has not offered any evidence that
would corroborate her contentions or the veteran's accounts
of in-service mustard gas exposure.
The probative evidence of record tends to weigh against
rather than support her contentions. It was indicated that
the Compensation and Pension Service found that the veteran's
name was not included on the list of testing volunteers
retained by them. See M21-1, Part III, para. 5.18c.
While the NPRC was unable to locate any medical records
pertaining to the veteran, it did find that the veteran's
name was not included on the World War II exposure to
hazardous chemicals list.
Finally, the U.S. Army Chemical and Biological Defense Agency
was unable to verify that the veteran was exposed to a
mustard agent. It specifically noted the veteran's account
of his exposure and opined that tear gas, chlorine, and
simulants were used in gas chamber tests. They further
opined that a simulant of phosgene could account for his
recollection of the odor of new mown hay.
The 1993 newspaper article from the Fort Worth Star
specifically noted the locations where mustard gas testing
had been performed, and it did not include San Antonio, Texas
(where the veteran reported that he was exposed) as one of
those locations.
In addition, the newspaper article indicated that the testing
was performed on veterans who had volunteered to undergo the
experiments. While the veteran testified that he did not
remember whether he volunteered, he consistently indicated
that the tests he referred to were conducted as a part of his
Basic Training. All of the above constitutes persuasive
evidence against the appellant's claim.
The appellant's own assertions are outweighed by this
evidence because she is not competent (nor is the veteran) to
provide an opinion as to what type of gas or chemical the
veteran was exposed to while in the service. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-495 (1992).
In light of the above, the Board concludes that there is a
preponderance of the evidence against the appellant's claim
for service connection of the cause of the veteran's death as
secondary to exposure to mustard gas. See Gilbert, supra.
When a veteran is found not to be entitled to a regulatory
presumption of service connection for a given disability, the
claim must nevertheless be reviewed to determine whether
service connection can be established on a direct basis. As
such, the Board must not only determine whether the veteran
has a disability which is recognized by VA as being
etiologically related to prior exposure to mustard gas, but
must also determine whether his current disability is the
result of active service under 38 U.S.C.A. § 1110 and
38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039,
1043-1044 (Fed.Cir.1994).
With respect to direct service connection, the certificate of
death lists the immediate cause of death as being sepsis due
to pneumonia. The underlying cause of death was listed as
small cell lung carcinoma. Review of the record shows that
the probative medical evidence does not show a causal link
between the veteran's cause of death and an inservice injury
or disease. The medical evidence of record does not
establish that the veteran had any of these impairments
during active service, or that either of these disabilities
are related to an injury or disease incurred during active
service. There are no medical opinions linking the cause of
the veteran's death to service.
In addition, there is no evidence that any chronic disease,
such as lung carcinoma, was shown in service or during an
applicable presumption period. See 38 C.F.R. § 3.309(a).
Nor is there medical evidence of a relationship between the
cause of the veteran's death and any alleged continuity of
symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999);
McManaway v. West, 13 Vet. App. 60 (1999); Savage v. Gober,
10 Vet. App. 488 (1997).
With respect to the cause of death being tobacco-related, the
Board notes that the appellant filed her original claim for
the cause of the veteran's death in October 1997. Therefore,
service connection of a tobacco-related death or disability
can be established in two basic ways: direct service
connection or secondary service connection. See VAOPGCPREC
19-97.
As was stated above, the death certificate indicated that
tobacco use was a contributing factor in the cause of death.
In addition, the veteran contended in June 1997 that he
started smoking while in the service; however, there are no
medical opinions or other competent evidence present in the
record that causally link the veteran's cause of death to in-
service tobacco use.
The appellant has also failed to establish service connection
for the cause of death through secondary service connection
by failing to provide competent evidence that the veteran
acquired a dependence on nicotine while in the service.
There is no medical opinion or any other competent evidence
indicating that he acquired nicotine dependence while in the
service. See VAOPGCPREC 19-97.
The appellant has opined that the veteran's nicotine or
tobacco addiction began while he was in the service. See
Tr., p. 2.
The Board notes that, generally speaking, lay persons are not
competent to offer evidence that requires medical knowledge.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding
that a witness must be competent in order for his statements
or testimony to be probative as to the facts under
consideration).
Neither is the Board competent to supplement the record with
its own unsubstantiated medical conclusions as to whether the
veteran's cause of death is related to a disease or injury
incurred during service, including tobacco use or dependence.
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
For these reasons and bases and following a complete review
of the record, the Board finds that the evidence does not
establish that the cause of the veteran's death is related to
a disease or injury incurred in service, including exposure
to mustard gas and tobacco use or dependence. Based upon a
full review of the record, the Board finds that the evidence
is not so evenly balanced as to require application of the
benefit of the doubt in favor of the appellant. Gilbert v.
Derwinski, 1 Vet. App. 49, 56 (1990).
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals